Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1887-09-24
THE FIRE LADIES CLAIMS.
JUDGE VAN FLEET B0LDS THAT
THEY SHOULD BE PAID.
Another Form OF Action Necessary
to Decide Who is Chief Engineer
Full Text OF the Decision.

! plaintiff claimed was illegally held. As
Will be seen on reading the decision, the
Court holds that public policy demands
that the claims should be paid. The ques-
ton as to whether Sullivan or o Meara is
| entitled to the office of Chief Engineer he
only refers to, stating that another form OF
action must be taken TO decide it. After
the reading of the decision, counsel for
plaintiff asked to obtain stay OF pro-
ceedings for ten days, to prepare for an APP
peal TO the Supreme Court. Counsel init
mated willingness, however, that the
Auditor should draw his warrants for the
payment of the members of the depart
ment. Following is the full text of the
decision:
- In this action the plaintiff seeks to en-
join the defendant, as City Auditor of Sac
ramento city, from drawing his warrants
on the Treasury OF said city in payment of
certain claims and demands which have
been certified to defendant as allowed by
the Board of Fire Commissioners of said
city for salaries and expense bills of the
Paid Fire Department for the month of
August of the present year. The complaint
in no manner attacks the validity of any of
said demands against the city, but alleges
that the meeting of the said Board of Fire
Commissioners at which said demands were
audited and allowed was not legal meet
ing, for the reason tina. it was not called by
proper authority: that it was not held at
the proper place for holding meetings of
said Board, and that no legal notice thereof
was given to the members of said Board
The answer of the defendant, after mega
living the. allegations of the complaint as
Ysnf fta..n ]
ring affirmatively that ii was regularly
plea that the bills, claims and accounts
which were audited and allowed at said
meeting were all proper and lawful claims
and accounts against the Paid Fire Depart
ment Fund of said city; and were for de-
mands which accrued against said fund
during the month OF August, 1887 That
of the amount SO allowed as aforesaid the
sum of 81 ,525 was for the monthly salaries
OF the officers and employees of said Paid
Fire Department; that the delay in pay
ment OF said claims so audited and allowed
as aforesaid or the Withholding of said
payments will tend 10 impair the efficiency
of said Fire Department in its active duties
in protecting the property of said city from
injury by fire
A great deal of testimony was taken at
the trial, much Of which was directed to
the issue made as to the legality of said
meeting, and particularly upon the ques-
non as TO the manner in which ii was
called as TO whether any notice was given
OF It's holding, and as to the place where
the same was held. 1t would be fruitless,
however, in the view / take of the case,
TO dwell upon these features of the evil
dence or recite the facts appearing there
from, further than to state that ii clearly
appears, as alleged in defendants special
defense, that the claims and demands, the
payment of which it is sought to enioin,
are the regular salaries and expense bills
OF the Paid Fire Department for the month
of August, 1887.
Defendant contended at the argument
in substance, that injunction is not the
proper remedy to test the question sought
to be determined i'll this action; that no
question being raised as to the business or
validity of these demands as against the
city, and it appearing that they are based
upon claims for fixed salaries and expenses
of de .tdctO officers and employees of the
Paid Fire Department, that the regularity
of their allowance cannot be inquired into
in this manner, and injunction will not lie
to restrain their payment; that Court of
equity has no jurisdiction in the premises
to afford relief of any character but that
Pie'ihtii4 iiuSt oCCh LIS proper TeLHeuy III q
Court of law
This point was first made among sew
eral others, by defendant at the conclusion
of plaintiffs evidence, on a motion for non
suit. The motion was not argued but was.
by suggestion of counsel, denied pro foy1na
TO be further considered on final argument.
suggested to counsel at that time. how
ever, that the proposition struck me with
considerable force. and that | was inclined
to think it tenable. Since the argument
and thorough examination of the author
tiles, find my first impressions strength
ened into conviction, and have become
satisfied that plaintiff has mistaken his
remedy and cannot be afforded relief in
this form of action.
This same question came before the
Court of Chancery, Of The State of New
York. in the case of Tappan VS.. Gray %
Palges Oh. Rep. 500. In that case it was
sought to enioin the payment of the de-
PENDANT who claimed the right to hold the
office OF Flour Inspector of the city of New
York, and who was at that time discbarp
ing the duties thereof, of certain fees and
emoluments of the office. upon the ground
that he had wrongfully intruded himself
into the office, to which the plaintiff
claimed he was entitled, and it was asked
that a receiver be appointed to take charge
of the office until the litigation was settled.
But 1t was held by the Court (Walwortb
Chancellor) that although it appeared that
the defendant was wrongfullv holding the
office, that the action would not lie. That
defendant, being the de .facto incumbent
OF the office, payment to him of the
emoluments of the Off re could not be
enjoined until it had been determined
in proper proceeding for that purpose.
who was entitled to the office. In giving
his reasons the Chancellor said This
Court certainly ought not to assume the
jurisdiction to Dust an officer in no way
connected with the administration of ius-
tice here, and over whose appointment il
has no control, from an Office the duties of
which he is discharging under color of an
appointment from the Executive of the
State, until his right to such office has
been settled in the mode prescribed by the
revised statutes for the determination for
his claim. That, however, would be the
necessary effect of an injunction such as is
prayed for in this case. Such relief, there
fore, could not be granted without depriy-
ing the public of the benefit which the
inspection law contemplates until the ter
mination of this litigation. As it would be
equally inconsistent with public policy and
the rights of those who are interested in
having the duties of the Office properly dis
charged 10 appoint receiver OF the fees
and emoluments of office
This case is sustained in both principle
and authority. The reasons given are CO.
gent and are strikingly applicable to the
facts OF this case. Here the Court is asked
TO exercise its chancery power through the
medium of an injunction to restrain the
payment of the entire payroll of the Fire
Department-an act in its nature calculated
to greatly impair, if not entirely paralyze,
this arm of government and deprive the
citizens of its very important protection for
an indefinite time. In view of the vital
interest involved in the efficient working
of this branch of the public service, and its
importance to the welfare and safety of
property, and even human life it would
seem that the force and reason of the rule
Just stated could not be better illustrated
" 1t is manifested incidentally from tie
evidence in this case that this controversy
is but the shadow of greater one which is
going on within the Fire Department of
said city, involving the question as to
whom of two individuals is entitled to the
office of Chief Engineer of the department
1t is hardly necessary to suggest that this is
not form of action in which that contest
can be settled directly or indirectly. If it
be desired to have the title to an Office tried
the parties must seek their remedy by quo
Wdrranto. as specifically provided by the
Coda nf Civil Droanlura ICao Cn2